Authors: Gustavo A. Suarez (Greenville), Betsy Johnson (Los Angeles)
Published Date: December 21, 2016
On December 9, 2016, the City of Los Angeles enacted the Los Angeles Fair Chance Initiative for Hiring (LAFCIH), a “ban the box” law that is expected to go into effect on January 22, 2017, with monetary fines effective July 1, 2017. The ordinance (1) greatly restricts criminal history inquiries by employers on Los Angeles applicants, (2) creates a new “fair chance” pre-adverse action process, and (3) catapults Los Angeles to the vanguard of local jurisdictions, like New York City and Philadelphia, with the nation’s toughest ban the box restrictions.
Scope and Definitions
The LAFCIH covers all entities that:
(1) are located or are doing business in the city of Los Angeles; and
(2) employ 10 or more employees (including owners and managerial/supervisorial employees).
The ordinance defines “employee” as any individual who:
(1) performs at least two hours of work on average each week within the boundaries of the city of Los Angeles; and
(2) qualifies for minimum wage under the California minimum wage law.
All of the ordinance’s restrictions apply to positions in the city, including those involving temporary or seasonal work, contract work, part-time work, contingent work, commission work, and vocational or educational training (even without pay).
Prohibitions on Pre-Employment Criminal Inquiries
The LAFCIH prohibits criminal history inquiries in an employment application. Additionally, an employer may not inquire about or require disclosure of an applicant’s criminal history unless and until a conditional offer of employment has been extended to that applicant. The ordinance defines “conditional offer of employment” as an offer of employment that is solely conditioned on an assessment of the applicant’s criminal history and the duties and responsibilities of the position in question.
Pre-Adverse Action Process
An employer must engage in the LAFCIH’s “fair chance process” before taking adverse action (e.g., (a) withdrawing or cancelling a conditional offer of employment or (b) otherwise failing or refusing to employ an individual) against an applicant based on his or her criminal history. While the ordinance is unclear on the precise sequence that is required (we hope the process will become clearer once regulations are issued), it appears that an employer must engage in the following pre-adverse action steps (in addition to federal and state requirements):
(1) Perform a written assessment that links the specific aspects of the applicant’s criminal history with the risks inherent in the duties of the position being sought.
The LAFCIH requires employers to consider, at a minimum:
the factors identified by the U.S. Equal Employment Opportunity Commission (EEOC) (while the ordinance is unclear and does not specifically identify these factors, it appears to be referring to the three Green factors—the nature and gravity of the offense, the time passed since the offense, and the nature of the job sought—and not the nine EEOC individualized assessment elements); and
any other factors as may be required by future rules or guidelines promulgated by the Los Angeles Department of Public Works, Bureau of Contract Administration (which has administrative oversight for the ordinance).
(2) Provide the applicant with a copy of the following:
a written notification of the proposed adverse action (i.e., a pre-adverse action letter);
a copy of the written assessment analyzing the three Green factors and any other factors promulgated by the Los Angeles Department of Public Works, as described above; and
any other factors or documentation supporting the proposed adverse action.
(3) Wait at least five business days after sending the pre-adverse action letter in order to give the applicant an opportunity to provide information or documentation to allow the employer to engage in (a) a new Los Angeles Fair Chance Process/Green factors analysis and (b) the EEOC individualized assessment. During this period, the employer should not take adverse action against the applicant or otherwise fill the position in question.
If, during the five-business-day period, the applicant provides additional information or documentation, the employer should:
(1) consider the new information/documentation and conduct an individualized assessment using the EEOC nine individualized assessment elements, as required by the EEOC Guidance; and
(2) conduct a written re-assessment of the proposed adverse action, using the three Green factors, as described above.
Adverse Action Letter Requirements
If, after completing the fair chance process, the employer still opts to take adverse action, it must (in addition to federal and state requirements):
(1) notify the individual of the adverse action (i.e., provide an adverse action letter); and
(2) if applicable, provide the applicant with a copy of the final written assessment.
All covered employers must include the following language in any advertisements or solicitations seeking applicants: “The employer will consider for employment qualified Applicants with Criminal Histories in a manner consistent with [the Los Angeles Fair Chance Initiative for Hiring].”
The pre-employment inquiry, pre-adverse action, adverse action, and advertisement requirements do not apply in the following circumstances:
(1) the employer is required by law to obtain information regarding an applicant’s criminal convictions;
(2) the applicant will be required to possess or use a firearm in the course of his or her employment;
(3) the applicant is prohibited by law from holding the position sought due to a conviction, regardless of whether the conviction has been expunged, sealed, eradicated, or dismissed; or
(4) the employer is prohibited by law from hiring an applicant who has been convicted of a crime.
The LAFCIH requires that all covered employers post a notice informing applicants of the provisions of the ordinance in a conspicuous place at every workplace, job site, or other location in the city of Los Angeles under the employer’s control that is visited by applicants. It is unclear what this notice, which appears to be different from the advertisement requirement described above, should say. It also is unclear how this notice will apply for online applications. We hope the Los Angeles Department of Public Works will weigh in on this point in the guidance we expect it will issue.
Additionally, employers should send a copy of the notice to each labor union or worker representative that has a collective bargaining agreement covering the employer’s Los Angeles employees.
Prohibition on Retaliation
Employers are prohibited from retaliating against an individual (e.g., discharging the individual, reducing his or her compensation, or otherwise taking an adverse employment action) for:
(1) complaining to the City of Los Angeles about the employer’s compliance or anticipated compliance with the ordinance;
(2) opposing any practice prohibited by the ordinance;
(3) participating in proceedings related to the ordinance;
(4) seeking to enforce his or her rights under the ordinance through legal means; or
(5) otherwise asserting any rights under the ordinance.
Record Retention Requirements
Employers must maintain all records and documents related to an individual’s application for employment, including any written assessments and re-assessments under the fair chance process, for a period of three years after the receipt of the applicant’s application. The Los Angeles Department of Public Works can request these records, and employers are required tocomply with these requests.
Reporting Violations/Private Cause of Action
An individual may report violations of the ordinance to the Los Angeles Department of Public Works within one year of the alleged violation. The department may issue citations, order specific actions to cure the violation, or levy fines. However, the department will only issue citations— and not fines—, until July 1, 2017.
An individual may bring a private cause of action against an employer for violations of the ordinance, but only after:
(1) reporting the violation to the Los Angeles Department of Public Works; and
(2) waiting for the later of (a) the department completing the administrative enforcement process or (b) a hearing officer issuing a decision.
Any civil action must be filed within one year of the later of completion of the administrative enforcement process or issuance of the decision.
We expect the Los Angeles Department of Public Works to issue rules and guidance on the LAFCIH. We will continue monitoring this ordinance as the effective date approaches.
Gustavo (“Gus”) Suárez assists employers with a broad range of employment law issues, including federal, state, and local background check and e-signature law (including single-plaintiff and class action defense); EEOC investigations and charges; and immigration compliance (including I-9 training and internal audits). He also regularly counsels management on Title VII issues. Gus is a regular, highly-rated speaker on topics like background check law, e-signature requirements,...
Betsy Johnson has represented employers in California since 1985. Ms. Johnson actively partners with her clients to seek innovative and practical ways to best meet their unique needs. Ms. Johnson works with California-based small and medium employers, as well as large multi-state employers. Ms. Johnson provides day-to-day advice on employment matters and “best practices.” She believes in taking a proactive approach to developing, drafting and implementing personnel and pay practice policies and...